Protecting Patents and Progress; Small Software Companies Need Strong Intellectual Property system.(OPED)

The Washington Times (Washington, DC), November 12, 2002 | Go to article overview

Protecting Patents and Progress; Small Software Companies Need Strong Intellectual Property system.(OPED)


Byline: Brad Anderson, SPECIAL TO THE WASHINGTON TIMES

The Supreme Court is about to decide whether to hear a case that, unless overturned, would leave small companies like mine far too exposed to potential thievery. The case, Johnson et al. vs. I/O Concepts, is seemingly about a little-known patent requirement known as enablement. But for newer industries with patents more complicated to understand, the case is critical to shaping future investment and advancement.

The enablement requirement is one of the core concepts in patent law. For society to have access to newer technologies more quickly, an inventor must write a description of the technology in the patent application. It is a description that would "enable" others trained in that trade to make and use the invention. The trade-off is simple. The inventor is given patent protection. Others get to study the new technology and try to improve upon it.

Enablement facilitates progress. But, as in this case, if judges fail to keep up with modern industry, their inability to understand enablement clauses can actually stymie growth.

The software, biotechnology and chemical industries have complex technologies. Therefore, sufficiently describing an invention in an enablement clause, while critical to understanding and sustaining patents, can be challenging. When patents dealt largely with manufacturing items, describing what the invention did and giving step-by-step instructions as to how to build it, was fairly straightforward. Describing software code or a living process, on the other hand, is not. What some in the trade may deem a sufficient explanation for understanding the patented technology, others may not.

The reason the Johnson case is so alarming is that the trial judge, without a trial, invalidated a patent because he did not think the enablement clause described the program. He dismissed the case without a hearing or testimony from live witnesses despite having a sworn statement from a software engineer saying that the enablement clause was sufficient. It is offensive that a judge, who may know the law but not software, could overrule what a skilled person in the software trade could do based on the patent's description. The judge never should have short-circuited the judicial process. The experts should have been heard. The matter should have been decided by a jury.

If courts are going to arbitrarily strike down patents that judges don't understand, it is going to be damaging for small technology companies whose most important assets are their patents. …

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